Jessenia Gonzalez De Vidal v. Ford Motor Company et al
Filing
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ORDER DENYING PLAINTIFFS' MOTION TO REMAND by Judge Fernando L. Aenlle-Rocha: Denying #11 MOTION to Remand Case to State Court. The court finds Defendant has shown by a preponderance of the evidence that the amount in controversy exceeds $75,000, and the parties are of diverse citizenship. Jurisdiction is proper under 28 U.S.C. Section 1332. For the foregoing reasons, the court DENIES Plaintiffs' Motion to Remand (Dkt. 11). [See Order for further details.] (es)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JESSENIA GONZALEZ DE VIDAL, et
al.,
v.
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ORDER DENYING PLAINTIFFS’
MOTION TO REMAND [DKT. 11]
Plaintiffs,
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Case No. 2:21-cv-07115-FLA (JPRx)
FORD MOTOR COMPANY, et al.,
Defendants.
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RULING
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Before the court is Plaintiffs Jessenia Gonzales De Vidal and Billy H Vidal’s
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(collectively, “Plaintiffs”) Motion to Remand (“Motion”). Dkt. 11 (“Mot.”).
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Defendant Ford Motor Company (“Defendant” or “Ford”) filed an Opposition, and
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Plaintiffs filed a Reply. Dkts. 15 (“Opp’n”), 16 (“Reply”).
On November 30, 2021, the court found this matter appropriate for resolution
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without oral argument and vacated the hearing set for December 3, 2021. Dkt. 18; see
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Fed. R. Civ. P. 78(b); Local Rule 7-15. For the reasons stated herein, the court
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DENIES Plaintiffs’ Motion.
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BACKGROUND
Plaintiffs filed this action in Los Angeles Superior Court (“LASC”) on July 30,
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2021. Dkt. 1-1 (“Compl.”). Plaintiffs allege they purchased a 2020 Ford Explorer
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vehicle on or about April 18, 2020, that was manufactured and/or distributed by
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Defendant. Id. ¶ 6. The Complaint asserts causes of action for breach of express and
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implied warranties under California’s Song-Beverly Consumer Warranty Act (“Song-
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Beverly Act”), Cal. Civ. Code §§ 1790-1795. See generally Compl. Plaintiff states
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the “total amount paid and payable, incidental and consequential damages and civil
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penalties exceeds $25,000.” Id. ¶ 7. Plaintiffs seek actual damages, restitution, a civil
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penalty in the amount of two times Plaintiffs’ actual damages, consequential and
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incidental damages, and reasonable attorneys’ fees. See id., Prayer for Relief.
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On September 2, 2021, Defendant filed a notice of removal, invoking this
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court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. See generally Dkt. 1
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(“NOR”). Plaintiffs now move to remand to LASC. See generally Mot.
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LEGAL STANDARD
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A defendant may remove an action from state court to federal court if the
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plaintiff could have originally filed the action in federal court. See 28 U.S.C.
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§ 1441(a). Under 28 U.S.C. § 1332, a district court has original jurisdiction over a
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civil action where (1) the amount in controversy exceeds the sum or value of $75,000,
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exclusive of interest and costs, and (2) the dispute is between “citizens of different
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States.” “[T]he amount in controversy includes damages (compensatory, punitive, or
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otherwise), the costs of complying with an injunction, and attorneys’ fees awarded
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under fee-shifting statutes or contract.” Fritsch v. Swift Transp. Co. of Ariz., LLC, 899
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F.3d 785, 793 (9th Cir. 2018).
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Courts strictly construe the removal statutes, rejecting removal jurisdiction in
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favor of remand to the state court if any doubts as to the right of removal exist.
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Nevada v. Bank of Am. Corp., 672 F.3d 661, 667 (9th Cir. 2012). “If at any time
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before final judgment it appears that the district court lacks subject matter jurisdiction,
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the case shall be remanded.” 28 U.S.C. § 1447(c).
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DISCUSSION
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First, Plaintiffs argue the amount in controversy does not meet the necessary
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threshold of $75,000, making diversity jurisdiction improper. Mot. at 2. Second,
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Plaintiffs contend Defendant has failed to establish diversity of citizenship exists
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between the parties. Id.
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I.
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Amount in Controversy
Removability is determined based on the removal notice and the complaint as it
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existed at the time of removal. See Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir.
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1985). The removing party need only include a “short and plain statement” setting
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forth “a plausible allegation that the amount in controversy exceeds the jurisdictional
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threshold.” Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 83, 89
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(2014). Where the plaintiff contests the removing defendant’s allegations, however,
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“both sides submit proof and the court decides, by a preponderance of the evidence,
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whether the amount-in-controversy requirement has been satisfied.” Id. at 82.
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In circumstances where it is “unclear or ambiguous from the face of a state-
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court complaint whether the requisite amount in controversy is pled, the removing
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defendant bears the burden of establishing, by a preponderance of the evidence, that
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the amount in controversy exceeds the jurisdictional threshold.” Fritsch, 899 F.3d at
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793 (citation omitted). “The amount in controversy is simply an estimate of the total
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amount in dispute, not a prospective assessment of [the] defendant’s liability.” Lewis,
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627 F.3d at 400. Accordingly, in assessing the amount in controversy, a court must
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“assume that the allegations of the complaint are true and assume that a jury will
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return a verdict for the plaintiff on all claims made in the complaint.” Kenneth
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Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C.D.
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Cal. 2002) (cleaned up).
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Here, although Plaintiffs’ Complaint alleges only that the amount in
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controversy exceeds $25,000 (Compl. ¶ 7), Defendant has met its burden of showing
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that the jurisdictional minimum is satisfied. The court considers restitution, civil
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penalty, and attorneys’ fees in its determination. See Ortega v. Toyota Motor Sales,
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USA, Inc., 572 F. Supp. 2d 1218, 1221 (S.D. Cal. 2008) (“Damages recoverable under
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the Song-Beverly Act include restitution, incidental and consequential damages,
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attorneys’ fees and costs, and, if there has been a ‘willful’ violation of the Act, a civil
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penalty.”)
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Restitution
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Under the Song-Beverly Act, restitution is measured by the “amount equal to
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the actual price paid or payable [for the vehicle] by the buyer,” less the reduction in
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value to the vehicle “directly attributable to use by the buyer prior to the time the
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buyer first delivered the vehicle to the manufacturer or distributor … for correction of
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the problem that gave rise to the nonconformity.” Cal. Civ. Code § 1793.2(d)(2)(B)-
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(C). The calculation of restitution also excludes “nonmanufacturer items installed by
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a dealer or the buyer.” Id.
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“[T]he actual price paid or payable by the buyer [only] includes any paid
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finance charges.” Alvarado v. FCA US, LLC, Case No. 5:17-cv-00505-JGB (DTBx),
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2017 WL 2495495, at *4 (C.D. Cal. Jun. 8, 2017). Where the record does not show
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whether a plaintiff has made all installment payments for the amount financed, courts
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have found the total “cash price” listed on a Retail Installment Sale Contract is a
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reasonable estimate of “the actual price paid or payable” for the vehicle. See Luna v.
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FCA US, LLC, Case No. 4:21-cv-01230-LHK, 2021 WL 4893567, at *7 (N.D. Cal.
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Oct. 20, 2021); Messih v. Mercedes-Benz USA, LLC, Case No. 3:21-cv-03032-WHO,
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2021 WL 2588977, at *4 (N.D. Cal. June 24, 2021) (collecting cases).
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To determine the restitution amount, the cash price is then reduced by a
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“mileage offset” to account for the vehicle’s reduction in value attributable to use by
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the plaintiff prior to the first repair or attempted repair, as required by Cal. Civ. Code
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§ 1793.2(d)(2)(C). See Messih, 2021 WL 2588977, at *5. The mileage offset is
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determined by multiplying the “actual price of the new motor vehicle paid or payable
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by the buyer … by a fraction having as its denominator 120,000 and having as its
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numerator the number of miles traveled by the new motor vehicle prior to the time the
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buyer delivered the vehicle” for correction of the defect. Cal. Civ. Code
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§ 1793.2(d)(2)(C).
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Here, at the time of removal, Defendant did not have the underlying purchase
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agreement for Plaintiffs’ vehicle. Opp’n at 5. Instead, Defendant provided the
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vehicle’s Manufacturer’s Suggested Retail Price (“MSRP”) of $34,010 in support of
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Plaintiffs’ potential actual damages at the time. Id.; Dkt. 1-3. In opposing the Motion
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to Remand, Defendant supplemented its argument and provided the purchase
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agreement, Retail Installment Sale Contract (“RISC”), reflecting a total purchase price
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of $53,138.72. Dkt. 15-1. However, Defendant does not consider, nor does the record
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show, the number of installment payments Plaintiffs made for the amounts financed.
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Therefore, for purposes of this Motion, the court will consider the cash price of
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$33,2501 reflected in the RISC (Dkt. 15-1 at 3, ¶1(A)) as a reasonable estimate for the
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actual price paid. See Luna, 2021 WL 4893567, at *7; Messih, 2021 WL 2588977, at
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*4.
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Further, Defendant has not applied any offset in calculating actual damages.
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Plaintiffs argue Defendant fails to consider the mileage offset, and such an offset
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could significantly reduce Plaintiffs’ actual damages.” Mot. at 6. Yet, despite arguing
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The total cash price as calculated in the RISC does not include the following
additional charges Plaintiffs agreed to pay: document processing fee ($85), sales tax
($3,166.83), electronic vehicle registration or transfer charge ($30), optional services
contracts ($1,740 and $2,954), optional debt cancellation agreement ($895), license
fee ($216), registration fee ($228), tire fee ($8.75), and finance charge ($10,565.14).
See Dkt. 15-1 at 2-3. The $53,138.72 amount Defendant refers to includes the total
cash price, the additional charges as stated, and Plaintiffs’ down payment of $6,500.
Id.
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this could significantly reduce the amount in controversy, Plaintiffs are silent as to
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when, if ever, Plaintiffs first provided the vehicle for repairs, the mileage upon doing
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so, or how many miles Plaintiffs drove the vehicle. Such information is needed to
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calculate the offset Plaintiffs seek.
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Although the court cannot account for a potential use offset, it does not mean
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Defendant’s evidentiary showing of amount in controversy is insufficient. See
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Schneider v. Ford Motor Co., 756 F. App’x 699, 702 (9th Cir. 2018) (Ninth Circuit
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reversed the district court’s decision remanding a case where the defendant’s estimate
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did not account for the use offset). In Schneider, the court determined it was
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reasonable to assume that “the [vehicles] did not lose nearly all of their value after a
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few years of use” and potential use offset would not reduce actual damages so
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substantially that it would fall below the jurisdictional minimum. Id.
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2.
Civil Penalties
The Song-Beverly Act allows a plaintiff to recover a civil penalty of twice the
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amount of actual damages if the defendant’s conduct was “willful.” Cal. Civ. Code
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§ 1794(c), (e). Here, Plaintiffs allege Defendant’s “failure to comply with its
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obligations under [the Song-Beverly Act] was willful, in that Defendant and its
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representative were aware that they were unable to service or repair the Vehicle to
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conform to the applicable express warranties after a reasonable number of repair
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attempts, yet Defendant failed and refused to promptly replace the Vehicle or make
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restitution.” Compl. ¶ 23. Thus, according to Plaintiffs, they are “entitled to a civil
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penalty of two times Plaintiffs’ actual damages.” Id.
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Courts “have varying views as to whether the maximum civil penalties should
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be considered when deciding the amount in controversy.” Verastegui v. Ford Motor
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Co., Case No. 5:19-cv-04806-BLF, 2020 WL 598516, at *3 (N.D. Cal. Feb. 7, 2020).
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This court is persuaded that the maximum recoverable civil penalty should be
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considered for purposes of determining the amount in controversy “because that is
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what Plaintiff put in controversy.” Cox v. FCA US LLC, Case No. 3:20-cv-038086
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WHO, 2020 WL 5046103, at *2 (N.D. Cal. Aug. 24, 2020); Saulic v. Symantec Corp.,
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Case No. 8:07-cv-00610-AHS (PLAx), 2007 WL 5074883, at *4 (C.D. Cal. Dec. 26,
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2007) (“Courts as a matter of law, calculate the amount in controversy based upon the
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maximum amount of civil penalties available to plaintiff.”).
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Plaintiffs allege Defendant acted willfully and that they are entitled to the
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maximum civil penalty. Defendant should not be required to put forth evidence of its
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own willfulness to oppose a motion to remand. See Canesco v. Ford Motor Co., 570
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F. Supp. 3d 872, 902 (S.D. Cal. 2021) (declining to require the defendant to “prove a
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case against itself” with respect to liability for civil penalties in the calculation of the
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amount in controversy); Rahman v. FCA US LLC, Case No. 2:21-cv-02584-SB (JCx),
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2021 WL 2285102, at *2-3 (C.D. Cal. June 4, 2021) (same). Accordingly, the court
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finds that for jurisdictional purposes, the civil penalty available to Plaintiffs amounts
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to approximately twice the amount of $33,250, which equals $66,500. Adding this
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figure to Plaintiffs’ actual damages, the amount in controversy, exclusive of attorneys’
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fees, is $99,750.
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3.
Attorneys’ Fees
Plaintiffs’ Complaint also seeks reasonable attorneys’ fees as authorized by Cal.
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Civ. Code § 1794(d). See Compl., Prayer for Relief. Prospective attorneys’ fees are
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properly included in the court’s assessment of the amount in controversy. See Arias v.
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Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019) (“[W]hen a statute or
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contract provides for the recovery of attorneys’ fees, prospective attorneys’ fees must
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be included in the assessment of the amount in controversy.”); Gonzales v. CarMax
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Auto Superstores, LLC, 840 F.3d 644, 648-49 (9th Cir. 2016) (noting the amount in
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controversy includes “damages (compensatory, punitive, or otherwise) … as well as
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attorneys’ fees awarded under fee shifting statutes”).
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Here, defense counsel submits a declaration stating she has litigated cases under
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the Song-Beverly Act for approximately five years, and in her experience with
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Plaintiffs’ counsel, Consumer Law Experts P.C., she estimates attorneys’ fees to be
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between $25,000 to $40,000 before trial. Opp’n at 15 (Hughes Decl.), ¶ 4. Indeed,
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Plaintiffs’ counsel, Consumer Law Experts P.C., has sought much more than $40,000
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in attorneys’ fees in this district after settlement in actions brought under the Song-
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Beverly Act. See Velasco v. Mercedes-Benz USA, LLC, Case No. 2:18-cv-7880-MWF
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(SKx), 2021 WL 945259, at *2 (C.D. Cal. Jan. 4, 2021) (seeking $81,936.50 in fees
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and $19,578.90 in costs after settlement); Servin v. FCA US LLC, Case No. 5:20-cv-
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00647-SB (KKx), 2021 WL 4860691, at *1 (C.D. Cal. Aug. 20, 2021) (seeking
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$101,995.60 in fees, costs, and expenses settlement).
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Plaintiffs, on the other hand, argue this estimate of attorneys’ fees is speculative
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and without justification. Reply at 12-13. The court, however, has no difficulty
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finding Defendant has shown it is more likely than not that Plaintiffs’ demand for
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attorneys’ fees is sufficient to push the amount in controversy well over the
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jurisdictional threshold, to the extent it was not already met between actual damages
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and civil penalty.
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II.
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Diversity of Citizenship
The Supreme Court held “diversity jurisdiction does not exist unless each
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defendant is a citizen of a different State from each plaintiff.” Owen Equip. &
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Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). “Individuals are citizens of their
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state of domicile.” Muñoz v. Small Bus. Admin., 644 F.2d 1361, 1365 (1981); Kanter
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v. Warner-Lambert Co., 265 F.3d 853, 857 (2001) (“A person’s domicile is her
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permanent home, where she resides with the intention to remain or to which she
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intends to return”). A corporation is a “citizen” of both the state in which it was
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incorporated and the state where it has its principal place of business. See 28 U.S.C. §
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1332(c). Further, “a removing defendant’s notice of removal ‘need not contain
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evidentiary submissions’ but only plausible allegations of the jurisdictional
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elements.” Arias, 936 F.3d at 922 (quoting Ibarra v. Manheim Invs., Inc., 775 F.3d
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1193, 1197 (9th Cir. 2015)).
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Courts in this district have held a party may rely on an address listed in a
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purchase agreement to meet its burden of establishing an individual’s citizenship.
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Ghebrendrias v. FCA US LLC, Case No. 2:21-cv-06492-VAP (PDx), 2021 WL
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5003352, at *3 (C.D. Cal. Oct. 28, 2021) (Finding citizenship where purchase
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agreement and repair order listed a California address, and plaintiffs did not deny they
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were citizens of California); El-Said v. BMW of N. Am., LLC, Case No. 8:19-cv-
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02426-JLS (JDEx), 2020 WL 1187171, at *3 (C.D. Cal. Mar. 11, 2020) (Finding
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citizenship where purchase agreement listed a California address and plaintiff did not
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deny he was a citizen of California).
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Here, Plaintiffs argue Defendant has failed to establish Plaintiffs are domiciled
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in California. Mot. at 4, 9-10. Plaintiffs’ argument is unavailing. In the Notice of
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Removal, Defendant alleges “[u]pon information and belief, at the time this action
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was commenced, Plaintiffs Jessenia Gonzalez De Vidal and Billy H Vidal were
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residents of California.” NOR at 4. Defendant argues this was based on knowledge at
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the time that Plaintiffs had purchased or leased the vehicle in California, had the
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vehicle serviced in California, and filed this action in California with a California
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attorney. Opp’n at 9-10.
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Moreover, in opposing the Motion to Remand, Defendant submitted the RISC
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along with Accurint reports on Plaintiffs dated October 15, 2021, a CarFax report on
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the vehicle, vehicle repair records, and vehicle registration through April 20, 2022.
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Dkts. 15-1, 15-2, 15-3, 15-4, 15-5, 15-6. First, the RISC indicates Plaintiffs purchased
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the vehicle in California and provided a California residence at the time of sale. Dkt.
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15-1. This alone supports a finding of California citizenship. See El-Said, 2020 WL
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1187171, at *3; Ghebrendrias, 2021 WL 5003352, at *3. Likewise, the Accurint
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reports list only California addresses for Plaintiffs, and the vehicle was last registered
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to a California address. Dkts. 15-1, 15-2, 15-6. Further, the CarFax report and repair
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records show the vehicle has only been serviced in California. Dkts. 15-4, 15-5.
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Notably, Plaintiffs fail to state their citizenship and at no point contend they are not
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citizens of California.
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Accordingly, Plaintiffs appear to be citizens of California. Plaintiffs do not
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dispute Defendant is a citizen of Michigan and Delaware. The court is satisfied
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Defendant has shown complete diversity of citizenship exists.
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CONCLUSION
The court finds Defendant has shown by a preponderance of the evidence that
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the amount in controversy exceeds $75,000, and the parties are of diverse citizenship.
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Jurisdiction is proper under 28 U.S.C. § 1332. For the foregoing reasons, the court
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DENIES Plaintiffs’ Motion to Remand (Dkt. 11).
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IT IS SO ORDERED.
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Dated: November 21, 2022
______________________________
FERNANDO L. AENLLE-ROCHA
United States District Judge
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